By: Philip A. Toomey, Esq.
On July 5, 2018, a United States District Court in Sacramento, California granted the United States Department of Justice motion for preliminary injunction enjoining enforcement of certain provisions of California’s Immigrant Worker Protection Act. As we have previously reported, the law, which went into effect on January 1, 2018, imposes specific notice obligations. It also imposes a fine on employers if they voluntarily allow immigration agents to enter nonpublic work areas without a warrant, or permitting them to access, review or obtain company records without a subpoena or judicial warrant.
What the Court Enjoined
Under the court’s ruling, for now, private-sector employers cannot be fined if they voluntarily allow U.S. Immigration and Customs Enforcement officers to enter nonpublic work areas without a warrant, or allow those same agents to access employee records. The district court found that a law that imposed monetary penalties on an employer solely because the employer voluntarily consents to federal immigration enforcements impermissibly discriminates against those employers who choose to deal with the federal government. The court also blocked a portion of the law that limited an employer’s ability to re-verify employment eligibility of current employees in any manner not allowed by federal law.
What the Court Upheld
The court’s ruling did not invalidate the entire law. California employers must still provide both pre- and post-inspection notice to employees. The court specifically upheld the notice obligations that, within 72 hours of receiving a notice of inspection, an employer give notice to employees of any inspection of Forms I-9 or other employment records. The court also left intact the employer’s obligation, again within 72 hours after receiving inspection results, to give each “affected employee” a copy of the results and notice of the employer’s and employee’s obligations arising from the inspection. And while the court blocked the portion regarding re-verification of employment eligibility, federal law places limits on re-verification, and those limits still are applicable.
Since this is a preliminary injunction, the litigation will continue. In the meantime, California-based employers should continue to comply with the notice requirements. In the event of an inspection or request for documents, employers should consult with their attorneys as to their respective obligations, especially until this case is fully resolved.
Leech Tishman’s Employment Practice Group can help clients ensure compliance with California’s complex and technical employment laws and can assist clients with defending against civil or administrative actions.
If you have any questions regarding California’s unique employment laws or these employment law updates, please contact Philip Toomey. Phil serves as Leech Tishman’s West Coast Business & Employment Client Relations Partner and practices in the firm’s Employment, Corporate, Litigation and Real Estate Practice Groups. Phil is based in Leech Tishman’s El Segundo, CA office. He can be reached at 424.738.4400 or firstname.lastname@example.org.
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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, aviation & aerospace, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in El Segundo, CA, Chicago, Los Angeles, New York, Sarasota and Wilmington, DE.